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Thursday, April 24, 2014

Lamberth in Cobell Part 4: Pulling the Judge

Now for the long-promised installment of this series on the Indian Trust case discussing the D.C. Circuit’s decision, upon the government’s urging in the wake of Judge Lamberth's unique July 12, 2005 opinion, to reassign the case. Cobell was reassigned to Judge James Robertson (now retired) who scheduled a trial on the remedy less than a year after taking over the case.

First, let’s review the grounds for reassignment. The government argued that the string of reversals of Judge Lamberth's orders (discussed previously here) established a "pattern" of Judge Lamberth's "failure to follow [the D.C. Circuit’s] guidance.” The government also argued that the July 12, 2005 opinion was, “in its extended vitriol . . . unlike any other judicial opinion that we have ever seen,” that the tone and content of the opinion were such that Judge Lamberth had compromised the appearance of his own neutrality, and that the opinion thereby undermined the “appearance of justice” (the government's formulation of one of the circuit-law bases for reassigning a case).

The reversals -- several though they were -- were insufficient by themselves to justify reassignment; according to the court of appeals: “a legal ruling may not itself serve as the basis for a motion to disqualify.” The court also made clear that Judge Lamberth's generally harsh condemnations of the Interior Department throughout the opinion were insufficient, alone, to justify reassignment: "Although the July 12 opinion contains harsh--even incendiary--language, much of that language represents nothing more than the views of an experienced judge who, having presided over this exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations. We ourselves have referred to Interior's 'malfeasance,' 'recalcitrance,' 'unconscionable delay,' 'intransigen[ce],' and 'hopelessly inept management.'" The circuit panel thus rejected the government's argument that the district court’s "extraordinary pronouncements" of mismanagement, negligence, and so forth “have no legal or factual basis.” Indeed, it explained that "Interior's deplorable record deserves condemnation in the strongest terms. Words like 'ignominious' and 'incompeten[t]' (the district court's) and 'malfeasance' and 'recalcitrance' (ours) are fair and well-supported by the record."

I discuss the apparently decisive factor after the jump.

What seems to have been critical was the court of appeals’ conclusion that "although no one, not even the government, doubts that racism ran rampant at Interior a century ago," the July 12, 2005 opinion “extends beyond historical racism and all but accuses current Interior officials of racism." This, combined with the string of reversals and other passages from this and other of Judge Lamberth's opinions, the court concluded, "could contribute to a reasonable observer's belief that Interior stands no chance of prevailing whatever the merits of its position." This is the passage on which the court of appeals' conclusion about the accusation of racism primarily relies:

[T]he original General Allotment Act that created the trust was passed in 1887, at a time when the government was engaged in an 'effort to eradicate Indian culture' that was fueled, in part, by 'a greed for the land holdings of the tribes[.]' But regardless of the motivations of the originators of the trust, one would expect, or at least hope, that the modern Interior department and its modern administrators would manage it in a way that reflects our modern understandings of how the government should treat people. Alas, our 'modern' Interior department has time and again demonstrated that it is a dinosaur--the morally and culturally oblivious hand-me-down of a disgracefully racist and imperialist government that should have been buried a century ago, the last pathetic outpost of the indifference and anglocentrism we thought we had left behind." (emphasis mine).

This language is not soft, deferential, or forgiving. But it is ambiguous. The most that seems clear in this passage is the claim that the current Interior department is "morally and culturally oblivious" and an "outpost of . . . indifference and anglocentrism." This part of the opinion seems, if anything, carefully worded to avoid a direct racism charge. Perhaps that’s why the D.C. Circuit carefully minces its words (“all but accuses”--which, by the way, reminds me of saying that something is "tantamount to genocide." To quote The West Wing: "Tantamount, yes. Overwhelmingly.").

The court of appeals' diagnosis is made more problematic by the conclusion of Judge Lamberth's opinion, in which he spins out a variety of (admittedly uniformly damning) hypotheses to explain Interior’s mismanagement of the Indian trust. He speculates that Interior might be populated with "evil people," "apathetic people," or "cowardly people," that "Interior as an institution is so badly broken" that it incapable of properly implementing even well-intentioned policies, that "some structural flaw" makes the federal government generally unfit as a trustee, or that the Indians may have been "doomed the moment the moment the first European set foot on American soil." None of these directly suggests racism. More importantly, Judge Lamberth makes explicit his uncertainty as to the cause and, indeed, explains in a footnote that the broken-institution account has the most support in the record. I'm also not 100% sure how "all but" accusing Interior and its officials of racism is qualitatively different, with respect to creating an appearance of partiality, from calling them "recalcitrant," "intransigent," or "hopelessly inept." Perhaps the supposed racism accusation was particularly troubling because, according to the court of appeals, "drawing inferences of racism might well have been appropriate were Interior's motives relevant, as they would be in a discrimination case . . . ." But then what to intransigence and inteptitude go to, if not state of mind? In any event, the D.C. Circuit’s history in Cobell made the outcome fairly easy to predict.

Now, the real question: Can this episode have done any good? As a purely hypothetical exercise,* assume that you are “an experienced judge who, having presided over [an] exceptionally contentious case for almost a decade, has become 'exceedingly ill disposed towards [a] defendant' that has flagrantly and repeatedly breached its fiduciary obligations.” Imagine that, after years of experience and mountains of evidence, you conclude that only Congress can actually fix the Indian trust and resolve the litigation. And, finally, assume that Congress, so far, has taken only superficial, politically convenient but ultimately ineffectual actions. Under these circumstances, might you not come to believe that all you could do to advance the case toward an actual resolution is raise its profile to increase public pressure on Congress? The very public removal of a judge for a very public thrashing of a federal agency in very strong language might accomplish that -- aside from a Supreme Court decision, I know of little else originating in the federal courts that could. We all make calculations. What would you do under these conditions?

The next thing to consider is whether this incident played any significant causal role in the comparatively speedy resolution of the case following reassignment. I'll suggest in the next post that the reassignment may have been just the shake-up needed to get Cobell unstuck and moving into the endgame.

*I am emphatically not suggesting, directly or indirectly, that Judge Lamberth issued his July 12, 2005 opinion in Cobell for any reason other than believing that the factual assertions were supported by the record and that the legal conclusions were warranted by the relevant law. I offer this simply as a thought experiment -- we sometimes ascribe this kind of strategic thinking to judges and justices to explain unusual decisions (e.g., Chief Justice Roberts joining the Tax Clause opinion in Sebelius). Would we assess this move differently if it had been made for strategic reasons? Should judges in some cases play a long game?

Comments

So glad to see you blogging on this aspect. I can't remember if you were in the courtroom for this one, but Peter Keisler gave an absolutely amazing oral argument to the D.C. Circuit in favor of reassignment. Not surprisingly, given I was on brief for the reassignment case (among others), I would characterize how much of our argument the DC Circuit agreed with quite differently. But let me leave that to one side.

One nuance that those not involved might miss about the string of reversals: the multi-billion dollar accounting order, the two orders for the Department of Interior to shut itself off from the internet were issued as immediate injunctions (as I recall). Requests for stays of these extraordinary orders were requested from the judge and refused. I believe in at least some of these orders (my memory of the whole case fails me) 28 USC 1292 certification was sought and refused. The DOJ was forced to get emergency stays from the D.C. Circuit of these orders. My sense is that too had something to do with what the D.C. Circuit felt (even if they did not say it explicitly). It was a sign that something was wrong with this litigation and the judge having made up his mind to make Interior's life difficult in a way that would not push ultimate resolution of the case forward (though you may be right that it was intended to instead force Congress' hand). I (admittedly biased) have a hard time to believe that a judge seeking to actually responsibly carry forward a case would think it appropriate to order the ENTIRE department of the Interior to shut itself off of the internet. But to order them to do it immediately, and to refuse to stay that order while the D.C. Circuit reviews the matter? That seems to me to take a view of one's place in the constitutional order or a tunnel vision of a case that makes it hard to think the case was likely to go forward under the judge's stewardship. In many ways I think the fact that he forced the government to seek emergency stays weighed on the DC Circuit, since it meant constantly bringing them in to review the case.

Posted by: I. Glenn Cohen | Apr 24, 2014 4:56:54 PM

Hey Glenn, glad you're back. I also think how much of your brief the panel agreed with is a side issue. (It was a big win for your side, though -- no disputing that. Although I also think it was gutsy for the panel to echo the "recalcitrance" and "ineptitude" charges in this context.) There's no question that the emergency stays played a role, as did a hundred other things not mentioned in the court of appeals opinion. But if I'd been the judge with that trial record, I'd probably worry more about the loss of evidence and delay of remedy in the interim, given the stakes--maybe even feel obligated to try and prevent it -- even if I knew appeal was inevitable and the odds of being affirmed were slim (which, after a couple reversals, they certainly seemed to be). I can't imagine that someone as sophisticated as Judge Lamberth continued issuing these orders because he couldn't tell which way the wind was blowing upstairs, so there must have been some other reason.

What's your take on whether the reassignment helped speed up progress toward a resolution?